The Posted Workers (Agency Workers) Order (Northern Ireland) 2020

Modifications to the Agency Workers Regulations (Northern Ireland) 2011

2.—(1) The 2011 Regulations are to be read—

(a) As if after regulation 13, (Rights of agency workers in relation to access to employment), there were inserted—

“Hirer to inform temporary work agency of posting to a different member State

13A.   A hirer that proposes to post an agency worker for a limited period to carry out work in the territory of a member State in which the agency worker does not normally work, must, within a reasonable time prior to the commencement of the posting, inform the temporary work agency of—

(a) the member State of the posting; and

(b) the date on which the posting will commence.”, and

(b) in accordance with the further modifications in the rest of this regulation.

(2) Regulation 2(2) is to be read as if—

(a) the word “and” at the end of the definition of hirer was omitted; and

(b) there were inserted after the definition of hirer—

““posting” means the posting of an agency worker in accordance with regulation 13A; and”.

(3) Regulation 14(5) is to be read as if for “or 13”, there were substituted “13, or 13A”.

(4) Regulation 18 is to be read as if—

(a) after paragraph (3), there were inserted—

“(3A) Subject to paragraph (3B), a temporary work agency may present a complaint to an industrial tribunal that the hirer has failed to comply with regulation 13A.

(3B) Paragraph (3A) does not apply where a temporary work agency has commenced other civil proceedings against the hirer for the recovery of the same or substantially the same loss as would be pursued under paragraph (3A) and those proceedings are continuing.”;

(b) in paragraph (4), after sub-paragraph (b), there were inserted—

“(c) in the case of an alleged failure to comply with regulation 13A, with the date that the temporary work agency becomes aware of the posting.”;

(c) in paragraph (8), at the beginning of sub-paragraph (c), there were inserted “except in relation to a complaint that a hirer has failed to comply with regulation 13A,”;

(d) in paragraph (10)—

(i) after “paragraphs”, there were inserted “(11A),”;

(ii) in sub-paragraph (b) after “infringement”, there were inserted “or breach.”;

(e) in paragraph (11)—

(i) at the beginning, for “The” there were substituted “Subject to paragraph (11A), the”;

(ii) at the beginning of sub-paragraph (b), there were inserted “except in relation to a complaint of a failure by a hirer to comply with regulation 13A,”;

(f) after paragraph (11), there were inserted—

“(11A) In respect of an award of compensation made to a temporary work agency for a breach by a hirer of regulation 13A, the loss shall be limited—

(a) to losses arising out of any breach by the temporary work agency of the provisions of national law of a member State relating to the requirements under Article 3(1) of the Posted Workers Directive, including where loss is incurred by the imposition of any EU penalty arising out of such a breach; and

(b) to the extent only that the loss sustained is reasonably attributable to a breach by the hirer of regulation 13A.

(11B) In paragraph (11A)—

“competent authority” means a competent authority designated by a member State for the purposes of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System(1);

“EU penalty” means a financial administrative penalty or fine including fees and surcharges relating to non-compliance with the provisions of national law of a member State relating to the Posted Workers Directive—

(a)

imposed on a temporary work agency by a competent authority in a member State other than the United Kingdom; or

(b)

confirmed by an administrative or judicial body in a member State other than the United Kingdom as payable by a temporary work agency;

“Posted Workers Directive” means Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services(2), as amended by Directive 2018/957/EU of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services(3).”.

(1)

O.J. No. L159, 28.5.2014, p. 11–31.

(2)

O.J. No. L18, 21.1.1997, p. 1–6.

(3)

O.J. No. L173, 9.7.2018, p. 16–24.